Ask Nik: "Do I need to return rent for this alleged “unfit” period?"
Question from a landlord:
Hi Nikki,
A tenant recently Whatsapped me advising she had mould in her bedroom. Being away at the time, I suggested she moved any furniture way from walls, heated, ventilated and used mould killer where appropriate, and I would inspect on my return.
Her mother came to me shortly afterwards, demanding rent back for the period the property has been – in her opinion – “unfit for human habitation” or she would whistle blow to everyone she could find.
Immediately on my return, I inspected the room to find it in a filthy state with furniture moved against exterior walls. I deep cleaned it, treated the mould and repainted the affected walls with anti-fugal paint.
Since then, I’ve received an Informal Improvement Notice from the Council (attached), which states there’s damp in a couple of bedrooms and a broken extractor fan in a bathroom. I’ve already had a contractor deal with these. The damp was being caused by cracking to external render.
My question is: do I need to return rent for this alleged “unfit” period?
Thanks in advance for your opinion,
Dale.
Nik’s reply:
Hi Dale,
Thanks for your message – they sound like just the type of messages you want when on holiday (!).
I always find it helps to take the emotion out of it and stick to the facts – what the law says, what the contract says, and what you’ve done in response. That’s usually the quickest route to calm waters.
Here’s how I’d look at it:
- The Council haven’t said the property is unfit for human habitation – and actually, they couldn’t if they wanted to. That decision can only be made by a court, which is backed up by Welsh Gov guidance. The notice you’ve received is informal (the clue’s in the name) and carries no legal weight. If they thought there was a risk to continuing occupying the property, they’d have used one of their formal powers under the Housing Health & Safety Rating System (HHSRS) – things like a prohibition order or taking emergency action. They haven’t done that. In fact, they’ve made a point of saying this is an “informal” step and the most appropriate route in their view, which speaks volumes.
- The Written Statement you’ve entered into with the contract-holders says:
“The landlord must ensure the dwelling is fit for human habitation at all times. The Renting Homes (Fitness for Human Habitation) (Wales) Regulations 2022 prescribes the matters and circumstances to which regard must be had when determining whether the dwelling is fit for human habitation. Many of the matters and circumstances are subjective, particularly as the Regulations are in their infancy. It is expected that you and the landlord will be able to deem whether the dwelling is fit for habitation, but where there is a dispute, it will be determined by the courts. Where all or part the dwelling is deemed unfit for human habitation by agreement between you and the landlord or by the courts, you are not required to pay the equivalent sum of rent for the portion of the dwelling that is deemed unfit. The courts have published a Protocol which they expect prospective parties in a housing disrepair claim to follow prior to the start of proceedings. If a claim proceeds to litigation, the court will expect all parties to have complied with the Protocol as far as possible. The court has the power to order parties who have unreasonably failed to comply with the Protocol to pay costs or to be subject to other sanctions.”
When speaking to the tenant and her mum, I’d make it clear that you fully accept your legal duty to keep the property fit for human habitation, as per the Written Statement and Part 4, Chapter 2, Section 91(1) of The Renting Homes (Wales) Act 2016. Quoting that shows you’ve done your homework and take your responsibilities seriously. But I’d also be clear that no-one – including the Council – has actually deemed the property unfit.
- Even if the property had been considered unfit (which it hasn’t), the contract only says the tenant wouldn’t need to pay rent for the part of the property that couldn’t be used – not the whole thing. The usual way to work that out is the court’s method, which goes off a ‘per day’ calculation. They’d look at how much of the home was unusable and for how long, starting from when a “reasonable period” to fix it had passed. Often, it’s based on floor space – for example, if one room out of ten was completely out of action, that might equal 10% of the daily rent. If only part of the room was affected, it would be a portion of that 10%. So even in worst-case scenarios, you’re not talking about handing all the rent back – just a fair slice for however long the space couldn’t reasonably be used.
- Damp and mould often get lumped together, but they’re very different issues with different causes. Mould tends to stir up more emotion – probably because of how it looks and the health concerns people associate with it. I put together a short guide recently – A Landlord's Guide to Responding To and Addressing Mould Reports – and there are a couple of pages in there (the ones on causes and prevention) that are worth passing on to your tenants. Keeping a record of your inspections is key too. If you’ve popped round and seen wet clothes drying on radiators, no heating on, windows shut tight – that all helps build a clear picture that they haven’t exactly been helping the situation.
- Damp issues are structural and fixing them is the landlord’s responsibility, but the mere presence of damp isn’t a smoking gun that proves neglect. I often remind tenants and their parents that homes aren’t perfect boxes – things wear out, things go wrong, and our ever-changing weather doesn’t exactly help. Cracks in render can show up even in well-looked-after homes, but the important bit is acting on it quickly and keeping a paper trail, which you’ve clearly done.
You’ve done the right thing, Dale – responded quickly, fixed the problems, and stayed calm despite the noise. If they want to take it further, they’ll have to go through the proper channels, but you haven’t got anything to worry about in my opinion.
All the best,
Nik.
Got a lettings question on your mind? Fire it my way. I’ll always reply privately, and I pick one each week to feature here – always anonymously.
Cheers,
Nik
Director of Operations
CPS Homes
P.S. and a slight disclaimer: this isn’t legal advice – it’s just an honest, considered, best-of-my-knowledge answer.
The information contained within this article was correct at the date of publishing and is not guaranteed to remain correct in the present day.
